Case Note & Summary
The matter arose from an order passed by the Sub-Divisional Officer, Nagpur, acting as the Maintenance Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The petitioner, a 77-year-old senior citizen, had executed a gift deed on 1.8.2019 in favour of respondent Nos. 1 and 2, his wife and son. He subsequently filed an application before the Tribunal seeking maintenance and a declaration that the gift deed was void under Section 23 of the Act. The Tribunal, by its order dated 8.2.2021, declined both reliefs. Aggrieved, the petitioner filed the present Criminal Writ Petition before the Bombay High Court, Nagpur Bench, challenging the order. At the hearing, the respondents raised a preliminary objection, contending that the petitioner had an efficacious alternate remedy of appeal under Section 16 of the Act before the Appellate Tribunal, which is the District Magistrate. The petitioner argued that no appeal lay against that part of the order refusing to cancel the gift deed because the jurisdiction to declare a transfer void under Section 23 vested exclusively in the District Magistrate or his delegate, and the Maintenance Tribunal under Chapter II of the Act was concerned only with maintenance. The Court examined the scheme of the Act, particularly Sections 2(j), 5, 7, 15, 16, and 23. It held that the impugned order was passed by the Maintenance Tribunal in the course of a maintenance proceeding, and the Tribunal had the power to pass ancillary orders under Section 23. Consequently, the entire order was appealable under Section 16. Finding that the petitioner had an alternate and efficacious remedy, the Court dismissed the writ petition without examining the merits. The petitioner was granted liberty to file an appeal before the Appellate Tribunal within 30 days, with a direction that the Tribunal (the District Magistrate personally, not a delegate) should entertain the appeal, condone delay if sufficient cause was shown, and decide it expeditiously on its own merits. The decision thus reinforced the availability of the statutory appeal mechanism and discouraged bypassing it through writ petitions.
Headnote
A) Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - Appeal Against Order of Maintenance Tribunal - Section 16 - The impugned order dated 8.2.2021 passed by the Sub-Divisional Officer acting as the Maintenance Tribunal, which declined both maintenance under Section 5 and cancellation of a gift deed under Section 23, was held to be an order of the Tribunal passed in a maintenance proceeding. The Court ruled that such an order is appealable under Section 16 of the Act to the Appellate Tribunal (District Magistrate). The petitioner therefore had an efficacious alternate remedy, and on that ground the writ petition was dismissed with liberty to file an appeal within 30 days; the Appellate Tribunal was directed to condone delay if sufficient cause shown and to decide the appeal on merits. Held that the jurisdiction of the Maintenance Tribunal extends to passing orders under Section 23 in connection with a maintenance application. (Paras 6, 20-27)
Issue of Consideration
Whether the impugned order dated 8.2.2021 passed by the Sub-Divisional Officer under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, declining the relief of maintenance and cancellation of gift deed, is appealable under Section 16 of the said Act, and consequently, whether the writ petition should be entertained or the petitioner should be relegated to the alternate remedy of appeal?
Final Decision
The Court dismissed the writ petition on the ground of existence of an efficacious alternate remedy. It held that the order dated 8.2.2021 of the Maintenance Tribunal, including the part declining cancellation of the gift deed, is appealable under Section 16 of the Act to the Appellate Tribunal. The petitioner was granted liberty to file an appeal within 30 days, with a direction to the Appellate Tribunal (the District Magistrate personally) to condone delay if sufficient cause was shown and to decide the appeal on merits.
Law Points
- writ petition not maintainable when alternate remedy exists
- order under Section 23 of Maintenance and Welfare of Parents and Senior Citizens Act is appealable under Section 16
- Maintenance Tribunal has jurisdiction to pass orders under Section 23 in maintenance proceedings
- appeal against order of Maintenance Tribunal lies to Appellate Tribunal constituted under Section 15
